1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 27,978

10 ARMANDO ONTIVEROS,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

13 David P. Reeb, Jr., District Judge

14 Gary K. King, Attorney General

15 Farhan Khan, Assistant Attorney General

16 Santa Fe, New Mexico

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender

19 Nancy M. Hewitt, Appellate Defender

20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION

23 KENNEDY, Judge.

24 On October 2, 2009, we stayed issuing a decision in this case because it
2

1 appeared that one of the issues raised by Defendant might be affected by the United

2 States Supreme Court opinion in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129

3 S.Ct. 2527 (2009), and because the Melendez-Diaz issue was before our Supreme

4 Court in State v. Bullcoming, 2010-NMSC-007, ___ N.M. ___, ___ P.3d ___ (No.

5 31,186, Feb. 12, 2010). On February 12, 2010, our Supreme Court filed its opinion

6 in Bullcoming and its companion case, State v. Aragon, 2010-NMSC-008, ___ N.M.

7 ___, ___ P.3d ___ (No. 31,187, Feb. 12, 2010). The stay issued in this case is lifted,

8 we conclude that Issue V raised by Defendant is in all material respects governed by

9 Aragon, and we reverse.

10 BACKGROUND

11 Defendant was convicted of one count of distribution of a controlled substance

12 (methamphetamine) contrary to NMSA 1978, Section 30-31-22 (2005) (amended

13 2006). Proof that the substance transferred by Defendant was methamphetamine was

14 contained in a report generated by the New Mexico Department of Public Safety

15 Northern Forensic Laboratory. The State used Mr. James Mitkiff, a forensic scientist

16 employed by the laboratory, to establish a foundation for admission of the report into

17 evidence. However, Mr. Mitkiff testified that he neither analyzed nor reviewed the

18 original analyst’s testing of the substance. He was only able to testify as to standard

19 laboratory procedures and that the report would have conformed to those procedures.
3

1 The district court admitted the report over Defendant’s objection that he would be

2 unable to cross-examine the preparing analyst and that the report was inadmissible

3 hearsay. Defendant argues that the district court erred in admitting the laboratory

4 report. We agree.

5 ANALYSIS

6 In Aragon, the New Mexico Supreme Court reconsidered whether admitting a

7 chemical forensic report into evidence without testimony from the analyst who

8 prepared the report implicates the right to confrontation under the Sixth Amendment

9 to the United States Constitution in light of Melendez-Diaz. Aragon, 2010-NMSC10 008, ¶¶ 1-2. In Aragon, a chemical laboratory report was admitted into evidence

11 through the testimony of an analyst who neither supervised the preparing analyst,

12 participated in the analysis, nor prepared the report. Id. ¶ 5. Our Supreme Court

13 concluded that the forensic report was testimonial in nature. Id. ¶ 14. Thus, under

14 Crawford v. Washington, 541 U.S. 36 (2004), Defendant’s Sixth Amendment right to

15 confrontation was violated when the analyst who actually prepared the report did not

16 testify. Aragon, 2010-NMSC-008, ¶ 19.

17 Similarly, in this case, Defendant did not have a meaningful opportunity to

18 cross-examine the analyst who prepared the laboratory report. Mr. Mitkiff, the analyst

19 who testified at trial, neither supervised nor participated in the analysis of the
4

1 evidence. In addition, he did not review or prepare the report that was offered into

2 evidence. Under Aragon, Defendant’s Sixth Amendment right to confrontation was

3 violated. Moreover, the error was not harmless because it was the only evidence

4 which proved that the substance tested was methamphetamine. Cf. Aragon, 2010-

5 NMSC-008, ¶¶ 34-36 (holding that the admission of one laboratory report into

6 evidence in violation of the defendant’s Sixth Amendment confrontation right was

7 harmless error where a second report was properly admitted into evidence, and the

8 defendant was convicted on one count of drug possession).

9 Because we conclude that it was reversible error to admit the laboratory report

10 into evidence, we do not reach Defendant’s remaining arguments.

11 CONCLUSION

12 Defendant’s conviction and sentence are vacated and this matter is remanded

13 to the district court for further proceedings consistent with this opinion.

14 IT IS SO ORDERED.

15 ___________________________________

16 RODERICK T. KENNEDY, Judge

17 WE CONCUR:

18 ___________________________

19 ROBERT E. ROBLES, Judge
5

1 ___________________________

2 TIMOTHY L. GARCIA, Judge